Purusottam Mahakud Vs. Smt. Annapurna Mahakud and anr. - Court Judgment

Excerpt:

.....of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the court has the discretion either to grant time to make the deposit or not. no formal order condoning the delay is necessary, an order of adjournment would suffice. the provisions of limitation embodied in the substantive provision of the sub-section (1) of section 173 of the act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the..........by the learned district judge, keonjhar in title appeal no. 25 of 1994 allowing interim maintenance in favour of the opposite party. the relevant facts of the case are as follows :2. smt. annapurna mahakud, the opposite party before this court brought title suit no. 72 of 1992 in the court of civil judge (senior division) keonjhar against her husband, the present petitioner, for realisation of a sum of rs. 43,000/- towards arrear maintenance and cost of construction of a separate residence claiming maintenance at the rate of rs. 500/- per month. the defendant while admitting the marriage challenged the claim of maintenance contending that the opposite party voluntarily left the marital home and refused to come and stay with the petitioner without just cause. the learned civil judge after hearing both the sides found that there was no ill-treatment to the plaintiff by the defendant and the plaintiff left the house of the husband wilfully and voluntarily to avoid his company without any just cause. accordingly, he dismissed the plaintiffs suit. the aggrieved plaintiff preferred title appeal no. 25 of 1994 before the district judge. in the appeal, she also filed a petition.....

Judgment:

ORDER

C.R. Pal, J.

1. The petitioner calls in question the legality of the order dated 29-6-1995, passed by the learned District Judge, Keonjhar in Title Appeal No. 25 of 1994 allowing interim maintenance in favour of the opposite party. The relevant facts of the case are as follows :

2. Smt. Annapurna Mahakud, the opposite party before this Court brought Title Suit No. 72 of 1992 in the Court of Civil Judge (Senior Division) Keonjhar against her husband, the present petitioner, for realisation of a sum of Rs. 43,000/- towards arrear maintenance and cost of construction of a separate residence claiming maintenance at the rate of Rs. 500/- per month. The defendant while admitting the marriage challenged the claim of maintenance contending that the opposite party voluntarily left the marital home and refused to come and stay with the petitioner without just cause. The learned Civil Judge after hearing both the sides found that there was no ill-treatment to the plaintiff by the defendant and the plaintiff left the house of the husband wilfully and voluntarily to avoid his company without any just cause. Accordingly, he dismissed the plaintiffs suit. The aggrieved plaintiff preferred Title Appeal No. 25 of 1994 before the District Judge. In the appeal, she also filed a petition claiming interim maintenance at the rate of Rs. 500/-per month. The appellate Court after hearing both the sides passed the impugned order allowing her interim maintenance at the rate of Rs. 50/- per month which is now underchallenge.

3. Before this Court it is contended on behalf of the petitioner that in absence of any statutory provision recognising the right to interim maintenance the order passed by the learned District Judge is without jurisdiction and is liable to be set aside. The learned counsel for the opposite party. Thus, the question which requires determination is whether the opposite party has any right to claim interim maintenance. In the above context, it can be said that the right of a wife to claim maintenance flows from Section 18 of the Hindu Adoption and Maintenance Act, 1956. The right to claim interim maintenance in a suit or in an appeal which is a continuation of the suit flows from the substantive right recognised under Section 18 of the Hindu Adoption and Maintenance Act, 1956. Since no forum is prescribed under the Hindu Adoption and Maintenance Act to enforce the right recognised under Section 18 of the said Act the only forum available to enforce the said right is the Civil Court where suit can be instituted for enforcement of the said right and the Civil Court in exercise of its inherent power can grant interim maintenance. Such a view also finds support from the decision of the Full Bench of this Court in Khadal Penthi v. Hulash Dei, AIR 1989 Orissa 137 wherein it has been held as follows :

'When the suit for maintenance is not filed under any of the provisions of the Hindu Marriage Act, 1955 it being a suit of civil nature, the civil Court has jurisdiction to entertain and try the suit under Section 9 of the Civil P. C; The prayer for interim maintenance cannot be one under Section 24 of the Hindu Marriage Act which provides for grant of pendente lite maintenance and expenses of the proceeding. No suit is contemplated under Section 18 of the Hindu Adoptions and Maintenance Act as the said section merely recognised the right of a Hindu wife to be maintained by her husband, which right was also recognised even under the texts of Hindu Law before enactment of the aforesaid Act. Her right to be maintained as declared and recognised by Section 18 of the said Act is an enforceable right which can be enforced in a suit in the CivilCourt. There is no express provision in any law or in the C. P.C. for grant of interim maintenance in a suit for maintenance. In such cases the court would have inherent power to pass such order as may be necessary to meet the ends of justice.'

It is thus a settled position of law that the Civil Court has got inherent jurisdiction to award interim maintenance. Therefore, the order of the learned District Judge allowing interim maintenance in favour of the respondent cannot be said to be without jurisdiction. The learned counsel for the petitioner could not show any other irregularity in the impugned order to justify interference with the same in revision. The learned counsel, however, submitted that for the convenience of both the sides a direction be given to the appellate Court to dispose of the matter expeditiously. Considering this submission, while dismissing the revision, the appellate Court is directed to dispose of the Title Appeal No. 25 of 1994 within three months from the date of receipt of the order.

With the aforesaid observations, the Civil Revision is dismissed. Parties are to bear their own costs.